And you thought he was done. Not even close. When your goal is to destroy legal immigration and make it out of reach for everyone but, the richest, you keep fighting to the end and that is exactly what the Trump Administration is doing. Today, the DOL released in Final Rule format the rule they had released in interim final format in Oct. The new rule will go into effect in 60 days but, the new wages will not be released until July 2021 and there will be a phase-in period. If you recall, that rule was struck down by multiple Federal Courts due to a complete failure to follow the correct legal procedures and the substance of the rule was criticized relative to its faulty assumptions, poor methodology, and math. The DOL “considered” the public comments, in part pointing out the absurdity of having some entry level wages set at $208,000/year, reviewed the decisions from the Federal judges that ruled against them and then dismissed it all and re-issued a very similar rule. To their credit, they did correct some of their math errors. The new methodology sets the wage levels at the 35th,53rd,72nd, and 90th percentiles. A number of the Plaintiffs who pursued federal lawsuits over the interim final rule have already announced that they will be suing again. There is also an expectation that the Biden Administration will take a look at all of the regulations rushed through by the Trump Team so this may all be moot.
Recently, the DOJ has filed a lawsuit against Facebook over its PERM program. At its core, the complaint alleges that Facebook did not advertise as effectively or recruit as aggressively for its positions associated with PERM applications as it did for other openings. An excerpt from the press release is telling: “In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each.” It is interesting that the DOJ has not alleged that Facebook failed to follow the DOL guidelines relative to recruitment activities but, is claiming that the recruitment activities expressly permitted by the DOL are ineffective. In this respect, I think we would all agree; the notion that a Sunday newspaper classified section is an effective place to recruit for professional jobs in 2020 is ridiculous. How, the DOJ can make the leap that the failure of the DOL to update its regulations would be the fault of the employer fastidiously following those regs is a stretch at best and an abuse of power at worse. Updating the PERM program to use data and modern recruitment techniques is the answer, not this lawsuit.
Specifically, the DOJ alleged that Fleetlogix required these non-US citizens to provide specific and unnecessary work and identity documentations because of their citizenship, nationality and/or immigration status as required by the Immigration Reform and Control Act of 1986 (IRCA) by way of completion of a Form I-9, Employment Eligibility Verification. The DOJ’s investigation found that Fleetlogix required specific documentation, such as I-94s (Arrival/Departure Records), Employment Authorization Documents (work permits) and/or Permanent Resident Cards (green cards), even though the individuals had already presented other valid and legally sufficient documents to prove both their identity and work authorization including drivers’ licenses and unrestricted Social Security cards.
Form I-9 requirements come out of the IRCA. IRCA prohibits employers from hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment. Employers also are prohibited from continuing to employ an individual knowing that he or she is unauthorized for employment. This law also prohibits employers from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.
The Immigration and Nationality Act (INA)’s anti-discrimination provision prohibits employers from requesting more or different documents than necessary to prove work authorization and identity. Congress by way of the INA, determined that all work-authorized individuals could choose which valid, legally acceptable documents to present to prove their work authorization and identity on the Form I-9. The INA does not permit employers to request specific or additional documentation if the documents presented are genuine looking documents.
Under the terms of the settlement agreement, Fleetlogix will pay fines/civil penalties of $627,000, create a back pay fund for individuals who lost their jobs due to the discrimination, train employees responsible for the completion of the Form I-9 on the requirements of the INA’s anti-discrimination provisions and change their internal I-9 policies and procedures.
The USCIS posted a reminder to F-1 students working on OPT and OPT STEM about monitoring the duration of all periods of unemployment as exceeding the cumulative allowance can leave a student without legal status and impact future change of status filings. One of the most common RFE’s issued in H-1b cap cases is demanding proof of status of students who have engaged in any type of employment whether OPT, STEM OPT, or CPT. The USCIS has created a helpful counter to assist. During this time of COVID as instances of temporary unemployment have become more common, this is a timely reminder.
Lawsuits against the USCIS do work and spur change. As a result of a class action lawsuit filed by AILA member Rob Cohen, which challenged the post-approval delays in EAD issuance, USCIS will now allow people to show the I-797 approval notice as proof of authorization to work:
See this update on I-9 Central
The USCIS stated:
Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed. As a result, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020.
The DOL has recently announced that the USCIS has agreed to start sharing data with the DOL regarding potential LCA violations that are detected as part of a non-immigrant or immigrant petition filing. For example, if an H-1b worker is transferring her H-1b petition from Co. A to Co. B and the last pay-stubs presented are not current, there may be a failure to pay the required wage violation which the USCIS would refer to the DOL for potential investigation. For employers following the rules and paying all wages required and at the correct level, this is good news as increased enforcement may level the playing field from those cos. that are not in compliance.
On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.
The major changes are to the form’s instructions, which include:
1. Clarified who can act as an authorized representative on behalf of an employer
2. Updated USCIS website addresses
3. Provided clarifications on acceptable documents for Form I-9
4. Updated the process for requesting paper Forms I-9
5. Updated the DHS Privacy Notice
Possible H-1b abuse by Uber ? Check out this report in the Mercury News. The report that they are filing for senior level software engineer positions at a level 2 OES wage appears to be a direct contravention of well-established DOL rules. Hopefully, after this practice has been brought to light, the company will take corrective action or if not, the DOL will investigate. For the legal immigration system to work well and not open itself up to extreme restrictions, U.S. employers must play by the rules.
Yes, H-1b fraud is real; less prevalent than the White House would have you believe but, more prevalent than many in the industry want to admit. As a recent CEO discovered, fraudulent acts can lead you to prison. Check out the story of this CEO who was recently sentenced to 7 years behind bars.